Monday, 12 May 2014

EAST-UKRAINE: The Legality & Constitutionality of that ''Referendum''

On Sunday 11 May, the voters in eastern Ukraine voted in an unofficial referendum on independence. The vote was an act of defiance. On Monday pro-Russian Separatists declared a resounding victory in a Separatists referendum on self-rule in eastern Ukraine regions. Hours after the vote, dismissed by Kiev and Western governments and U.S. as illegal, Separatists leaders' plans remained unclear. Some have publicly supported pressing for annexation by Russia, which absorbed Crimea after a similar vote in March.

Ukrainian leader Oleksander Turchinov accused Russia of working to overthrow legitimate state power in Ukraine after Russia said it respected the outcome of the referendum, in which separatists in the industrial Donetsk region claimed 90 percent support, and that the results should be implemented peacefully. It did not say what further action it might take.

The European Union and U.S. declared the referendum illegal, bogus and prepared to increase pressure on Russia on Monday by taking a first step towards extending sanctions to companies, as well as people, linked to Moscow's annexation of Crimea from Ukraine. The E.U. and U.S. believe that the referendum will create even more problems in the effort to de-escalate the situation.

The referendum opened a new phase of uncertainty in a country historically divided between a Russian-speaking east and a more westward looking west. The authorities are wary of the danger of clashes between security forces and crowds that could stir wider bloodshed.

Drawing comparisons with referendums held in a number of other states, considering the democratic credentials of the vote, it can be argued that the referendum now represents the majority attempting to impose its views on the minority, and that vote on eastern Ukraine’s future should only have taken place once there had been a negotiated settlement among all parties in the region.

What are the consequences of the referendum? Was it legal or Was it unconstitutional? Was that referendum ''bogus''? Was Putin's suggestion that the vote should be postponed as he did on Wednesday ''an irony''? Categorical answers are rare in politics, law and international affairs. This article tends to outline some of the consequences and the legal situation pertaining to the referendum and provides a dispassionate analysis of the situation.

Was the referendum bogus? If by ‘bogus’ the E.U. and U.S. mean illegal, it is not difficult to answer the question in the affirmative. The referendum was undoubtedly unconstitutional. Article 73 of the Ukrainian Constitution of 1992 is unequivocally clear. It states that “issues of altering the territory of Ukraine are [to be] resolved exclusively by an all-Ukrainian referendum”. As the vote was only held in the eastern part of the country, the vote was ipso facto unconstitutional.

Of course, the separatists claim that they have a ‘legal right’ to hold a referendum. This is not a reading that can be supported by either international or national law. The right to self-determination does not give a minority a ‘right’ to independence in legal terms.

To be sure, occupied territories (such as East Timor and Western Sahara )won support for referendums on self-determination from the International Court of Justice. But these advisory opinions are not legally binding in the strict sense and nor are they relevant to the present case. For unlike Western Sahara and East Timor, eastern Ukraine is not a territory that has been invaded by a foreign state. Eastern Ukraine was already part of the country.

Further, the two advisory opinions do not say anything about unilateral secession. Given the blanket-ban in the Ukrainian constitution and the lack of clear guidelines in international law, it is fair to say that the referendum in eastern Ukraine was illegal and not consistent with the principle of pravovoe gosudarstvo ­– roughly translated ‘the rule of law’.

Referendums may appear democratic. But no democracy can function in the long run if it becomes a tyranny of the majority. Like First-Past-the-Post electoral systems, the winner-takes-it-all in a referendum.

As we saw in referendums in Croatia in 1991 and in Bosnia in 1992, referendums held without prior negotiations between the parties exacerbate conflicts and force the losers to embrace political violence. For example, in Bosnia the Serb minority had no other option than to resort to violence when they were defeated at the polls in a vote they could never win for demographic reasons.

Democracy and majority rule may be good guiding principles in theory; in practice they only work if there is a modicum of respect for minorities.

The referendum can be a mechanism that consolidates a peaceful settlement. A plebiscite can provide the seal of approval to a negotiated settlement. This was famously the case in Northern Ireland in 1998 when a massive 73 per cent endorsement by the voters in the referendum on the Good Friday Agreement facilitated the end of ‘the troubles’. The same was true in Burundi in 2005, where a negotiated settlement on power-sharing between Hutus and Tutsis was endorsed by a referendum.

But the referendum must only be held after a compromise is reached. Anything other than that is likely to result in strife and in many cases entrenched civil war. Granted, all-out war is less likely in eastern Ukraine than in Croatia or in Bosnia, but a referendum is unlikely to be conducive to constructive negotiations. The E.U. and U.S. are undoubtedly right that the referendum will create even more problems in the effort to de-escalate the situation.

Photo-Credit: AFP-photo- Members of a local election commission in eastern-Ukraine sort ballots as they start counting votes of yesterday's referendum on the status of Luhansk region in Luhansk May 11, 2014.